The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se petitioner John Sample ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28. U.S.C. § 2254 alleging that he is in state custody in violation of his federal constitutional rights. On November 21, 2001, Petitioner entered a plea of guilty in front of the Honorable James P. Punch in New York State, Supreme Court, Erie County to the following: one count of Rape in the Second Degree (Penal Law § 130.35(1)) , three counts of Rape in the Third Degree (Penal Law § 130.25(2)) and one count of Incest (Penal Law § 255.25) in full satisfaction of a thirty-four count indictment. Judgment was entered on February 8, 2002.
For the reasons stated below, the petition is denied.
II. Factual Background and Procedural History
Petitioner's charges resulted from the repeated rape and sodomy of his minor daughter from 1998 to 2000, beginning when his daughter was twelve (12) years old. The abuse lead to the birth of Petitioner's child by the victim.*fn1
On February 23, 2001, the grand jury in Orleans County indicted Petitioner by Indictment Number 01-09 on thirty-four counts including, nine counts of Rape in the First Degree, one count of Rape in the Second Degree, seven counts of Rape in the Third Degree and five counts of Sodomy in the First Degree. Petitioner was arraigned on March 16, 2001 in Orleans County before the Honorable James P. Punch. On November 21, 2001, Petitioner plead guilty to the following reduced charges: one count of Rape in the Second Degree, three counts of Rape in the Third Degree, and one count of Incest. At that time, Petitioner was asked if he understood that by pleading guilty he was forfeiting both his right to a trial by jury and his right to appeal. (P. 6, 12).*fn2 Petitioner answered in the affirmative to both. During his plea, Petitioner admitted to having sexual intercourse with the victim in February 1998, December 26, 2000 and January 4, 2001. (P. 7-9). He also admitted that he believed the victim was twelve (12) years old when the abuse began. (P. 7).
Petitioner was sentenced on February 8, 2002 to imprisonment for two and-one-third to seven years for Rape in the Second Degree, one and one-third to four years for each of the three counts of Rape in the Third Degree and one and one-third to four years for Incest, each to run consecutively. (S. 4).*fn3 The aggregate sentence was seven and one-third to twenty-three years, however, by operation of law the maximum sentence was reduced to twenty years.*fn4
In violation of the terms of his plea agreement, Petitioner appealed his conviction on February 15, 2004 to the Appellate Division, Fourth Department alleging (1) ineffective assistance of counsel; (2) the waiver of his right to appeal was invalid; and (3) the sentence was unduly harsh and excessive. The Appellate Division, Fourth Department unanimously affirmed Petitioner's conviction by Order entered on October 2, 2003. People v. Sample, 309 A.D.2d 1312, 765 N.Y.S.2d 311. The Court of Appeals denied further leave to appeal on December 16, 2003. Sample, 1 N.Y.3d 579, 775 N.Y.S.2d 796.
Petitioner brings this petition ("Pet.") for habeas relief alleging (1) that his guilty plea was unlawfully induced by counsel's misrepresentation that if he plead guilty no jail time would be imposed; (2) that he was denied effective assistance of counsel at sentencing; and (3) that his sentence was harsh and excessive. Pet. at ¶ 22A.
Respondent argues that: (1) Petitioner's claim that his guilty plea was fraudulently induced is unexhausted and patently frivolous; (2) Petitioner's ineffective assistance of counsel claim is meritless; and (3) Petitioner's claim that his sentence was excessive is not cognizable on habeas review and is, in any event, without merit. Respondent's Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus ("Res. Mem.").
III. General Principles Applicable to Habeas Review
A. The AEDPA Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing ...